Morten Kjaerum interview with internal Europol magazine 'Europolitan'

1.What do you consider to be the core business of the Fundamental
Rights Agency?
The core task of the Agency is to provide the institutions and Member States
of the European Union with assistance and expertise that will support them to
uphold fundamental rights when they develop and apply EU law and policy.
We do this in two ways. Firstly, by collecting and analysing evidence and data
from across the EU to identify the degree to which fundamental rights
standards are being met in practice.
This allows policy makers to know what kinds of problems exist and how
widespread they are. It is only with this accurate picture of the situation that
they can properly target their policies and legislation towards addressing the
real challenges as experienced by people on the ground. The second way in
which we provide support is by offering our advice on how the problems that
we have identified can be overcome.
This can include making specific suggestions on law and policy reform,
sharing examples of good practice that we find, or developing training
materials to target professionals who are on the front line of delivering
services. We adapt our approach according to the needs and requirements of
the authorities that ask for our assistance.

2. How does your Agency add value for the European Citizen?
For law and policymakers to improve day-to-day life for people in the EU, they
need to know exactly what problems they face on the ground. And this is
something that the Agency is able to capture by the way it carries out its
research. Depending on the area that we are investigating this can be through
face-to-face interviews with victims of hate crime, people taking cases to
court, people with mental health problems being cared for in institutions, or
children using the justice system. So the Agency adds value to the European
citizen by basing its advice to decision-makers on real-life problems, and by
putting forward solutions that take fundamental rights standards off
paper and into practice.
The Agency also works with key professions that have an important impact on
fundamental rights, such as legal practitioners, law enforcement agencies and
the media. By developing training materials and designing training curricula
we help journalists to promote tolerance and respect for diversity, we help
police to promote human dignity, and we help lawyers and judges to advise
their clients correctly and protect citizens’ fundamental rights when deciding
on cases.

3. What is a fundamental right according to you. Do you work from a specific
definition and is the list absolute?
Fundamental rights reflect the values that promote and protect the dignity of
the human being. The Agency does not itself create new fundamental rights.
We work with the list of rights that are recognised in the Charter of
Fundamental Rights of the EU, which is legally binding on the EU and its
Member States when they implement EU law. In that sense, the list is fixed.
Typically fundamental rights can be phrased in quite abstract terms, so there
is room for interpretation. When interpreting the meaning of a right the Agency
refers to international human rights law as developed by the United Nations
and the Council of Europe and, of course, the Court of Justice of the EU.
Although the list of rights is fixed, the meaning of rights can evolve over time.
For example, the right to privacy became part of European and international
law at a time when technology did not allow for phone tapping and the internet
had not been invented. So originally this right just protected the privacy of
written correspondence. Over time it came to include telephone conversations
and emails. The right to data protection itself emerged in response to
developments in technology that allowed for the collection, storage and
processing of personal information that was not previously possible. This is
why you do not find it expressly listed in the European Convention on Human
Rights, which is around 60 years old, but you do find it in the Charter of
Fundamental Rights, which is a much more recent document. So although we
work with a fixed list in the Charter, that’s not to say that future developments
in technology or changes in social attitudes will not lead to the Charter being
adapted or expanded in the future.

4.. How do you suggest an effective balance between data protection and law
enforcement’s need for advanced tools to fight organised crime or terrorism,
eg. by access to storing personal data, cross-matching, telephone tapping,
room bugging, etc?
Apart from the right to be free from torture, inhuman or degrading treatment or
punishment, no right is absolute. All rights can be balanced against, and
sometimes outweighed by, certain legitimate aims, including protecting public
safety. The key question is whether the balance is correct in each case: is the
interference with a person’s right to data protection justified by the legitimate
aim of protecting public safety? Here we have to ask if this level of
interference that results from a particular technique is absolutely necessary,
or whether the same goal can be achieved through some other less intrusive
means. Broadly speaking, the more intrusive a measure, the more serious the
crime at issue needs to be. As part of that check of necessity, sufficient
safeguards need to be in place to prevent misuse. This includes strict
limitations on the circumstances in which such investigative techniques can
be used.
For example, a decision to use these tools should be based on specific
intelligence rather than based on general profiles which could be
discriminatory where they are based on abstract categories like gender, age
or ethnicity. Ultimately, compliance with data protection law and fundamental
rights should enhance effective policing rather than hinder it.

5. When I read your Annual Report for 2010 and specifically the chapter on
'Protection of Victims' it seems - first of all - to be shorter than chapters in
other areas and focuses on victims of trafficking. Is it not a fundamental right
to live without crime in general (murder, robbery, rape, violence, intimidation,
etc) and how will your Agency protect and promote this?
Law enforcement authorities play a vital role in protecting fundamental rights,
particularly crimes that violate rights relating to physical integrity or property,
which are guaranteed by the Charter of Fundamental Rights. The Agency has
in the past, and is currently developing, training materials for use by law
enforcement agencies which underline the key part that they play in
fundamental rights protection.
The Annual Report actually deals with victims of crimes across several
different chapters, so a shorter chapter does not mean that the issue receives
less attention. For example, the issue of racially-motivated hate crime is dealt
with under a chapter on racial equality, and crimes affecting children and
other groups are also dealt with in separate chapters. In addition to this the
Agency has several ongoing projects that deal specifically with the rights of
victims. These include large-scale quantitative research surveys - such as the
FRA’s forthcoming survey on violence against women, which will interview
over 40 000 women across the EU, and will include questions
about reporting of incidents to the police and the kind of treatment women
receive. Other large and ground-breaking surveys by the Agency include an
EU-wide survey on hate crime experienced by Europe’s lesbian, gay, bisexual
and transgender communities, as well as a survey in selected Member States
on contemporary manifestations of anti-Semitism. Alongside this, the Agency
is conducting research on victim support services in the EU under the
framework of access to justice. In this regard, we are working closely with the
European Commission to support its efforts to develop measures to improve
the protection of and support for victims of crime over the coming years.

7. Where do you see room for improvement in the cooperation between
FRA and Europol, and what can Europol do to underpin your important work?
We are more accustomed to hearing about policing and law enforcement in a
negative light when it comes to fundamental rights. But as I have pointed out,
law enforcement agencies play a central role in protecting fundamental rights
by preventing and resolving crime. And just as policing is vital to fundamental
rights protection, fundamental rights has a lot to offer policing. Incorporating
human rights principles into policing can help to boost public confidence in the
police, which in turn makes individuals more willing to come forward as
witnesses or as victims who report crimes and assist with their resolution.
An overarching objective of cooperation between Europol and the FRA has to
be to improve understanding of the relationship between fundamental rights
and policing both among the public in general and law enforcement agencies
more particularly. More specifically, I look forward to moving from broader
institutional cooperation with Europol into more in-depth collaboration on
specific projects.
Coming back to the issue of public confidence, the Agency’s research
highlights problems of trust in the police among certain minorities, such as
lesbian, gay, bisexual and transgender persons, and ethnic minorities. And
this appears to be a cause of underreporting of crimes among these groups.
So collaboration between the Agency and Europol, looking at how to improve
the ways that police forces serve these communities, would be valuable for
both of our organisations. As a first step the Agency and Europol will carry out
a staff exchange programme in 2012. Although the specifics of this
programme have yet to be finalised, it could focus on the Agency’s on-going
and planned work in fields such as extreme forms of labour exploitation, hate
crime, trafficking, human rights and policing (in particular training), data
collection and the protection of privacy.
I also see scope for future cooperation on the methodologies we use when
carrying out our research and working with stakeholders. In particular on how
to collect and analyse primary and secondary data, which forms the base of
evidence on which the Agency provides its advice to the EU institutions and
its Member States.